a collective bargaining agreement would have and that it created a new status by way of conditions of employment and so on, a status that cannot be changed except by recourse to the Railway Labor Act. But the Award had certain additional weight beyond that which would make it equal to a collective bargaining agreement. It was an award of a compulsory arbitration board, which was, in an action to impeach it, confirmed by this Court in a proceeding resulting in a judgment of this Court. It was because of this difference, in part, at least, that the Court held that the administrative remedy was not exclusive since the administative remedy applied to claims under collective bargaining agreements.
We then must resort to basic principles. There is indeed a doctrine known as election of remedies and there are cases that hold, in effect, that if there are two remedies and the claimant elects one, he may not thereafter abandon it and pursue another. But this is too broad a statement. The better doctrine is that election of remedies is binding only if the second remedy that is sought to be invoked is based on a theory that is irreconcilable with that upon which the first proceeding was founded. We have, of course, the familiar example of a person suing for rescission of a contract on the ground that it was obtained by fraud, who may not thereafter ratify the contract and sue for damages, the theory being that the second remedy is irreconcilable and inconsistent with the first.
If, however, the two remedies are not inconsistent and are not irreconcilable, the doctrine of election of remedies does not apply. This was held in a case decided many years ago by the Court of Appeals for the Second Circuit, Equitable Trust Co. of New York v. Connecticut Brass & Mfg. Corp., 10 F.2d 913. It may be noted that Judge Learned Hand was a member of the panel that sat in that case and concurred in the decision. It seems to the Court that as a matter of pure theory of law, there is no inconsistency here and that therefore there should be no bar to pursuing the judicial remedy after abandoning the administrative remedy subsequent to its institution. The situation would be different if the administrative remedy had been pursued to the end and a definitive rejection of the claim had been reached.
But there are practical considerations here. There was a period of uncertainty during which a claimant could not be sure whether he had a judicial remedy or an administrative remedy or both. It was not unnatural for him to protect himself by filing a claim, in view of the fact that there was a sixty-day limitation upon the filing of claims. So, too, it must be borne in mind that these claims were not filed through lawyers. They were filed by employees, who are not legally trained.
It might be argued, of course, that there must be some time limitation. That was urged before this Court on a previous occasion. It seems to this Court that the Supreme Court has answered that question in a recent decision in which it held that the local statutes of limitations would apply to claims of employees, International Union, United Automobile, Aerospace etc. v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed. 2d 192, decided on March 24, 1966.
In view of these considerations the Court reaches the conclusion that a claimant presenting a claim of the type involved in this motion for administrative consideration and who abandons his administrative remedy before it reaches a conclusion, is not barred from pursuing such judicial remedies as he may otherwise have.
The motion is denied.
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